How to Fix ABA Standard 501

Standard 501 of the ABA Standards and Rules of Procedure for Approval of Law Schools 2015-2016 states that “a school shall not admit an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.”   

The ABA Council of the Section of Legal Education and Admissions to the Bar is responsible for enforcing this standard.   Unfortunately, for the past five years while  law school admissions standards have plummeted, the Council has shown no willingness to use to this standard for its intended purpose -- to protect unqualified applicants from being admitted to law school when they have extremely poor prospects of actually becoming a lawyer.

According to Council Chair Justice Rebecca White Berch, "the Council is working on revising the Standards to make them clearer and more easily enforceable." In this post, I propose a way to revise Standard 501 which will accomplish this goal.

 The problem with Standard 501 is that the “appearance of capability” is a highly subjective concept, and subjective standards are extremely difficult to effectively enforce.  Suppose an applicant is a college graduate with an extremely low LSAT score and very poor undergraduate grades.  If a law school is aware of at least one student with similar grades and a similar LSAT score who earned a J.D., even from another law school, and passed a bar exam, then couldn’t the school plausibly claim to believe that this applicant “appears capable of satisfactorily completing its program of legal education and being admitted to the bar”? Variations on this argument, along the lines of "some people with low test scores went on to become wonderful lawyers" are frequently made, including by the leadership of the Council.  The likelihood of actually completing the program of legal education and being admitted to the bar does not appear to currently be a factor considered by the Council.  In effect, the way the standard is currently interpreted is this:  “if there is any possibility whatsoever that an applicant might complete your J.D. program and eventually pass a bar exam somewhere, then you have a green light to admit this student.”  Given that anything is possible, this is effectively no standard at all.

Each year for the past five years, bottom-feeder law schools have tested the Council’s willingness to enforce Standard 501 by admitting ever weaker entering classes, culminating in Cooley’s record-breaking entering class of 2015.  Thus far, the Council has shown a complete unwillingness to give Standard 501 any teeth, and has thus far refused to take any action against any school, no matter how egregious and exploitative the school's admissions policies have become.  As a result, thousands of woefully underqualified law students have been admitted, resulting in tens of millions of dollars in revenue for the admitting law schools and untold misery for the vast majority of these students who, quite predictably, failed out of law school, or were awarded a J.D. only to find that they could not pass the bar no matter how hard they tried.   

There is a very a simple fix to all this.  All the Council needs to do is change Standard 501 to an objective standard, as follows:  “a school shall not admit an applicant who does not appear likely to satisfactorily complete its program of legal education and be admitted to the bar.”  In conjunction with this change, the Council should adopt the following interpretation. 

Interpretation 501-3: The phrase “likely to satisfactorily complete its program of legal education and be admitted to the bar” means that the applicant has a greater than 50% chance of earning a J.D. and passing the bar in the state where the school is located on the first attempt, based on a statistical analysis of recent (within the last decade) matriculants at the school with comparable entrance credentials (LSAT score(s) and undergraduate grades).  Law schools must make the data upon which they rely, and the statistical analysis thereof, publicly available on the school’s website, and revise it annually.

Adopting such a standard would be consistent with the current policy of not having strict LSAT cutoffs for admission, because a higher undergraduate GPA could potentially offset a lower test score if the school's data supported such a conclusion.  Tying the standard to the state where the school is located would allow schools in states with easier bar examinations to admit students with slightly lower qualifications.  Basing the range of acceptable admissions criteria on the experience of prior enrollees at the school will reward schools that do a demonstrably better job of educating students with marginal credentials by giving them access to a broader applicant pool. Publishing the data will allow greater transparency into the admissions process and allow meaningful comparisons among law schools.   The requirement to make all of their data publicly available would also prevent schools from exploiting the fact that only the 25th, 50th and 75th percentile data on LSATs and UGPA are reportable under Standard 509.   This currently allows schools to admit classes where up to 24% of the entering students may be completely unqualified, for the purposes of collecting their tuition money to subsidize scholarships for students who are far more likely to succeed, while still appearing to have reasonable admissions policies. Requiring schools to present data about all of the matriculating students would likely curtail this practice.  

I’m sure there are those who will argue that a >50% standard is too strict, and others who will argue that it is too lenient.

For those who are concerned that a “more likely than not” standard based solely on grades and test scores is too tough (or too paternalistic) and would exclude some applicants with potential to become attorneys, I would suggest the following Interpretation be added:

Interpretation 501-4: Students who do not meet the “more likely than not” standard set forth in Interpretation 501-3 may be offered conditional admission to the law school continent upon successful completion of a rigorous admission by performance program, if the school can demonstrate that the program has predictive validity such that those who complete the program may be deemed to meet Standard 501.

 

The ABA should also allow a student to transfer into an ABA-Accredited Law School from an unaccredited law school if they can pass a tough end of first year cumulative examination, such as the California First-Year Law Student Examination.  This would give students who couldn't get into any accredited law school but who were determined to become lawyers a pathway to becoming a lawyer in states which only permit graduates from ABA-Accredited schools to take the bar. 

For those who believe a >50% standard is too soft, I would argue that it is better than no standard at all, which is more or less what we currently have.  A “more likely than not” standard would at least prevent the most exploitative admissions practices, and, when used in conjunction with a revised Standard 316 on Bar Passage (see LST’s recommended revisions to this standard, which I helped to develop, here), would provide a reasonable method for holding law schools accountable both at the front and back end of law school.

 

Comments

[Jojo]

Too subjective and prone to mischief. Need it to be objective cutoff. "There is a rebuttable presumption that an LSAT score one standard deviation below the mean (140) cannot satisfy this requirement and shall not be admitted absent an ugpa of at least 3.0 from a bachelor's program."

[David Frakt]

Jojo -

I think once all law schools were required to publish their data, it might be possible to establish a rebuttable presumption cutoff, but right now I can't say what that cutoff should be because there is so little publicly available data. Given that the average college GPA is 3.20 these days, and the median is often higher at many colleges, a 3.0 GPA does not mean that a student is a good student. At many colleges a 3.0 will put a student in the bottom third of the class. If I were a betting man, I wouldn't take a 140 unless they had at least a 3.5. My guess is that if a 50% benchmark were used, we would find out that the cutoff would be closer to 145. That is, I believe that nationally students below 145 (those that I have categorized as extreme risk) have a less than 50% likelihood of completing law school and passing the bar on the first attempt. In California, that number is probably a couple of points higher.

[[M][@][c][K]]

I think there needs to be some immediate consequence. One that occurs to me is to provide that schools can admit "at risk" students who fall below a certain cutoff, but to require them to forfeit all fees and tuition received (and post some sort of bond in that respect?) if the student fails to pass the bar within 2 years of graduation. To avoid moral hazard, the fees and tuition would not go to the student, but to a scholarship fund whose grants may not be directed towards the school - a fund for 'disadvantaged students."

This would create a situation where schools that claim they admitting students with alternate indicia of likely success to the LSAT would be taking a real pecuniary risk - rather than just reputation (hah!)

[Joel Coen]

A few questions/concerns about the proposal followed by a suggested addition to it:

No objection to the general idea of tightening up Standard 501, but would like to leave more room for students who might not meet some statistical marker, but who otherwise would be outstanding students to have in any law school. Most law schools, from Alabama to Yale, will admit a few exceptional students who may well be far outside their normal range. To give you an idea of who we're talking about,

* a student with an impressive record of civil rights activism,
* a soldier who prepared for the LSAT exam while deployed in Afghanistan,
* a fifty year old successful businesswoman who is finally pursuing her life long goal of obtaining a JD.
* a MD who has practiced medicine for 20 years.

These are not made-up hypotheticals, each describes an actual law student I know. Each performed poorly on the LSAT exam, but were admitted due to these extra factors. Students like this are found in nearly every law school.

Most law schools admit very few students in this range, meaning they would have very small datasets with which to meet the Frakt standard. Further, it is highly unlikely that law schools would go to the considerable expense of establishing an admission by performance program for 2-3 students per year.

Which leads me to a simple proposal. Tighten up Standard 501, but leave room for law schools to admit students such as those described above. A simple way to do it is to have a tough standard such as that proposed by Frakt, but allow law schools to admit students outside the standard with a statement listing the other factors considered by the Admissions Committee.

[Derek Tokaz]

The trouble with Joel's position is that the schools at the bottom will claim all their students are "outstanding." We won't be able to say "More than half the students admitted using criteria X failed out, so you can longer use criteria X" because criteria X will ultimately end up being a unique combination of skills. Not just a soldier who was deployed in Afghanistan right up until LSAT test day, but one who did that and has a bachelor's in criminal justice, and served as an MP, and so on. Once they're all unique, outstanding cases, we can't talk about using their traits to predict success of other students. At least, that's the argument I'd see schools using to defend their admissions practices.

I would look instead to the outputs, not the inputs. The school is in violation if fewer than Y% graduate and fewer than Z% pass the bar and are admitted to practice within 5 years. We wouldn't need to quibble over which individual students are likely to pass and which criteria are or are not predictive. Leave it up to the schools, but give them a stronger incentive to get it right. This is more or less what we already have through Standard 301, I would just (warning: cringe-inducing pun ahead) raise the bar.

[[M][a][c][K]]

Joel:

It is to allow for schools to admit exceptional candidates that I think the best solution is a fee and tuition forfeiture. It allows schools to make the choice, but put real pecuniary risk on their shoulders.

I think this is the only way to avoid gaming the system - take away any economic gain.

[Adam Scales]

I like Frakt's suggestion a lot. I agree with Joel that the intense individuation of the proposed standard does not appear to leave room for deviations. Can the objections to Joel's suggestion be adequately met with a numerical cap? In a 1L class of 200 or so, there really shouldn't be more than a handful of cases such as he describes. Maybe ten such slots would provide adequate wriggle room without the risks Derek identifies. Schools would have to identify to the ABA the special factors - probably not publicly disclosable, which I acknowledge is a problem - to carve out the "opportunity slots" from calculations that go into the 50% rule.

Regarding Mack's suggestion, I think the problem is that it tries to do too many things at once. A remedy of forfeiture is well-suited for individual harm (we lied to you about your chances of success in law school or the bar). But it's less apt for what amounts to a systemic injury - too many admittees. Mack inadvertently compounds this by adding a Bernie Sanders-style redirection of funds to disadvantaged students. Sometimes three (2.5?) policies in one produce synergy, but other times we get a hash.

That said, schools that admitted students outside the safe harbors of the 50% rule and the "opportunity rule" should be punished, and it makes sense to calibrate that to the numbers improperly admitted. I doubt full tuition forfeiture is the right number for the job, but we might get a clearer sense of what it should be once we have some experience with the Frakt rule, if were adopted.

Adam

[Derek Tokaz]

M-K,

That doesn't necessarily remove the financial incentive.

I'm guessing the marginal cost per student at a law school is quite low. A professor with 50 students is going to be paid the same if they increase the class size to 51, and no new desks need to be installed.

So, when one of those students fails out or doesn't pass the bar and the bond is forfeited, the school really doesn't look that much money. Take 2 students with a 50% chance to pass, and the one who does succeed should more than offset the one who didn't. It'd certainly lower the financial incentive to admit them, but it doesn't eliminate it.

[David Frakt]

Joel Coen -

These examples you give - when you say they performed poorly on the LSAT, what exactly do you mean by that? If you mean that they did worse than the typical students at the school to which they were applying, and the school decided to let them in anyway even though they were outside the range of normal admits at the school, then that is not necessarily problematic. My guess is that these people actually did ok on the LSAT and were not at high risk of failure. If they really did poorly, in the sense that the test indicated that they were likely to fail out of school, then they should not have been admitted. I don't have a problem giving schools with high admissions standards some leeway to admit some exceptional applicants, but that is not really the problem. The problem is non-competitive schools admitting scores of unqualified students. I would want to be very careful about carving out any exceptions that these predatory schools could take advantage of.

[[M][a][c][K]]

I see your point, however, it would subtantially decrease the incentive to enrol marginal students. One of the inherent problems with the ABA rules is the way in which they can be gamed. A real pecuniary and fairly immediate penalty beyond reputation (I mean what reputation) or a years' delayed low risk to accreditation does not work.

[twbb]

"That doesn't necessarily remove the financial incentive."

It certainly would for the Cooleys and Florida Coastals of the law school world.

[Captain Hruska Carswell, Continuance King]

The only reason we are debating this is because law school standards succumbed to a Walmart Uber negative cycle. Imagine for a minute: Would you want a dentist drilling in your mouth from the Florida Costal Dental Academy? Would you drive a car engineered by the Cooley Car Clinic? Would you live and work in a skyscraper designed by the Valpo-Marshall Design partners? A plane flown by a pilot from the Arizona Summit Flight School? Why does the ABA let in every Tom, Dick and Mary law school?

[Kyle McEntee]

CHCCK: the question is not why does the ABA let every school receive accreditation, the question is why the ABA standards are either too low or not adequately enforced in some instances. Accreditation is like an entitlement. If a school meets the standards, the school gets the badge. That's not just law schools/the ABA. I'm not aware of any accreditor in the U.S. that operates differently. (No, Med schools are not a counterexample.) To change that, you need to change the law.

[[M][@][c][K]]

Kyle:

There is a structural problem with accreditation, which lies in who does the accrediting.

To properly review the accreditation of an institution, especially one that purports to be a "professional school" (something law schools pretend to in brief intervals, the rest of the time claiming to be research institutions packed with legal scholars doing [non-peer-reviewed] scholarship*) is an inherently time consuming exercise. Someone does for example have to sample the admissions files to see what was the basis under 501 for admitting students ... and remember we now know that many law schools have been dishonest about many things.

This demands an accreditation team - a group of people knowledgeable about the legal profession and what it demands and therefore what a professional school should be doing. But here is where the problem starts - how many practicing and successful lawyers actually want to devote the time to such an exercise - or are they going to bill the time? In my experience those lawyers who are active in the ABA and other bars are, with a few exceptions, primarily self promotors, using the ABA as a networking opportunity - they are not "boat rockers." But the serious practitioners don't have the time.

The result is that accreditation devolves on those who have an implicit-interest in giving schools a positive review, professors from marginal schools, academics (some briefly and temporarily outside academia) who want to join the deanery, etc. (it's a great credential for a prospective dean "I know what the accreditation committee cares about....") The list of profiles of the accreditation committee of the ABA is filled with persons to which this description might apply. Nonetheless, you are faced with a basic problem - how do you get practicing lawyers with successful busy practices to join the accreditation teams and committee, especially those who have no vested interest in appeasing the "law school industrial complex"? do you draft them?

[Kyle McEntee]

CLE credit? Maybe find an organization that the attorneys you have in mind are part of, and work with them to make it a requirement of leadership (perhaps participation) in that organization?

[[M][a][c][K]]

The problem I have is that a large proportion of the lawyers I see in lawyers' organisations are in pure self-promotion career mode, they are very unlikely to "rock the boat" by tackling an accredidation mess. Moreover, it is worth remembering - in many instances the local college/law school is a big source of revenue to the local economy. Lawyer in those towns have their own pressures and interests.

Understand, I do think that harder enforcement of accreditation standards is necessary, but the problem of finding the right personel to do this is pretty significant.

[twbb]

You don't need part-timers; accreditation teams could be made up of professional accreditors, lawyers whose only job is to accredit. They could be charged to have (and have their work judged on) a certain skeptical criticism aimed at the schools.

[Captain Hruska Carswell, Continuance King]

Brackets,

If lawyers are too risk averse and too self interested to not save the profession and enforce school accreditation standards and ultimately the law, then what good are we? Were going to end up like Cadillac. A once storied, high prestige brand that folks aspired to own and now, a has been. Ordinary with cheap leases, rentals, spiffs, rebates,and look a like cars. An Escalade is simply a 85K chromed up Suburban. Some would argue that nothing less than the Rule of Law is at stake here.

[[M][a][c][K]]

CHCCK

I'm afraid a lot of lawyers are too self interested.

The ABA has undergone regulatory capture by law schools and particularly the bottom feeders because their administrations and faculty have a large direct interest in undermining accreditation standards - and a direct pecuniary interest outweighs altruism most of the time.

It's all well and good to make hortatory calls for lawyers to consider the interests of the profession and the public - but the practical problem does not go away - how do you get successful and/or struggling practitioners who are not self promotors to take a real role?